At the September 13, 2016, County Council Finance and Administrative Services Committee meeting, during discussion about the then-proposed contract Amendment No. 5.1 for the preparation of the EIS for the GPT project Whatcom County Deputy Executive Tyler Schroeder did not fully inform, County Council members on the subject of expiring Pacific International Terminals’ (PIT) local permit applications for the proposed Gateway Pacific Terminal (GPT) project.

PIT needs a Major Development Permit, and a Shoreline Substantial Development Permit from Whatcom County to undertake the GPT development.

In response to a question from Council member Carl Weimer who had asked Deputy Executive Schroeder if there is any way for the County to retire a permit, Schroeder told the County Council and meeting audience:

“there is no specific expiration language in the County code as it relates to larger projects. Where there is no language that just allows a permit, if there is no activity, to expire in the future.” And, Schroeder also said, “But there is not specific language that expires the permit…”

However, in terms of the Shoreline Substantial Development Permit application needed for the GPT project, there is, in fact, “specific language that expires the permit.”

Below, is the email letter I sent yesterday to the County Council about that subject:

I am seeking your assistance in obtaining a determination from Whatcom County PDS with regards to expiring Pacific International Terminal’s Shoreline Substantial Development Permit application (SHR2011-00009) for the proposed Gateway Pacific Terminal project.

At the September 13, 2016, Council Finance and Administrative Services Committee meeting, during discussion about the then-proposed contract Amendment No. 5.1 for the preparation of the EIS for the GPT and Custer Spur Modification Projects,
in an answer to a question from Council member Carl Weimer, asking if there is any way to retire a permit, Deputy Executive Tyler Schroeder made the following statement:

“As you review the County code, you will see, and I would recommend that Council maybe look at this into the future, um, that there is no specific expiration language in the County code as it relates to larger projects. Where there is no language that just allows a permit, if there is no activity, to expire in the future. And, so as I’ve articulated to other people that have asked the question, there is specific language in the major development permit code section that requires projects to be consistent with other state, federal laws as it relates to the proposal. So more than likely, in the next, uh, near future the County will be sending correspondence to the applicant to indicate to them that there is a due diligence, yes they have a due process, but the permit itself has to come to some type of completion. Now there are a number of different avenues that can take and I just want to be clear with Council, but the Administration is developing correspondence to send to the company in the next couple of weeks to start that process. But there is not specific language that expires the permit or specific language that says due to other agency decisions the local permit process is, is stopped or halted. And so the County has to take steps to accomplish that.”

In his statement above, Mr. Schroeder failed to fully inform the Council and meeting attendees that in terms of the Shoreline Substantial Development Permit application for the GPT project, there is, in fact, “specific language that expires the permit.”

WCC 23.60.090 E, states: “Any application for a shoreline permit or approval that remains inactive for a period of 180 days shall expire and a new application and repayment of fees shall be required to reactivate the proposal; provided, that the administrator may grant a single 90-day extension for good cause. Delays such as those caused by public notice requirements, State Environmental Policy Act review, litigation directly related to the proposal, or changes in government regulations shall not be considered as part of the inactive period.”

I had sent PDS Assistant Director Mark Personius, a July 28, 2016 email in which I asked a series of questions (7) which he responded to in a July 29, 2016 email reply. My correspondence with those questions and answers is shown in the attached two screenshot photos at the bottom of this email. I respectfully suggest you read all of my 7 questions and Mr. Personius’ responses to those.

Question number 3 in my July 28, 2016 email to Mr. Personius was: “If the EIS for GPT is still suspended, how long of a suspension duration is PIH/PIT legally allowed?
Mr. Personius’ response in his July 29, 2016 email reply to me was:
For shoreline permits, it’s basically 180 days. However there are provisions in WCC 23.60.090.E that could allow for a longer “suspension” of a permit application (e.g., for SEPA review, litigation directly related to the proposal, etc.)

When I read the language in WCC 23.60.090 E, and I look at the fact that PIT has had, and continues to have, the EIS SEPA review in suspension since the company first invoked its contract suspension clause back on April 1, 2016, I don’t understand why the County PDS has not already expired PIT’s Shoreline Substantial Development Permit application (SHR2011-00009) since that permit application has been inactive for over 180 days. The language is clear in the statute. The word “shall,” pursuant to Shoreline Management Program WCC 23.110 “Definitions,” means “a mandate; the action must be done.”

While WCC 23.60.090 E provides that
“Delays such as those caused by public notice requirements, State Environmental Policy Act review, litigation directly related to the proposal, or changes in government regulations shall not be considered as part of the inactive period,” presently, it is my opinion that none of those exceptions to a Substantial Shoreline Development Permit application being considered “inactive” would apply. Surely, the fact that the SEPA review and EIS for the GPT and Custer Spur Modification Projects have been suspended since April 1, 2016 demonstrates that PIT’s Substantial Shoreline Development Permit application is “inactive,” and pursuant to WCC 23.60.090 E, Whatcom County is mandated, by County law, to expire that permit application and a new application and repayment of fees shall be required to reactivate the proposal.

WCC 23.60.090 E also states that “the administrator may grant a single 90-day extension for good cause,” however, to my knowledge that has not occurred. And, even if the administrator were to consider granting a single 90-day extension for good cause, I do not think that PIT, at this point, could show any “good cause” in order to continue the EIS suspension delay its company has already taken advantage of for the last 200 days.

According to my calculations, September 27, 2016, was the 180-day mark of the suspension of the EIS preparation for the GPT and Custer Spur Modification Projects. The Council-approved (on Sept. 13, 2016) contract Amendment No. 5.1 extends the contract suspension for the EIS preparation until March 13, 2017. This newest contract suspension is more evidence of the fact that the SEPA review and EIS for the GPT project is still not moving forward giving further reason why County PDS needs to comply with its County Code and expire Pacific International Terminal’s Shoreline Substantial Development Permit application (SHR2011-00009).

Therefore, I officially request that the County Council seek an official determination from County PDS with regards to expiring PIT’s Shoreline Substantial Development Permit application (SHR2011-00009), and that you please respond back to me with your findings on this matter.